Re O-M (children) (expert evidence: non-accidental injuries) [2009] EWCA Civ 1405; [2009] All ER (D) 207 (Dec)
A clear distinction had to be drawn between the functions of treating clinicians and expert witnesses. A blanket approach which precluded treating clinicians from becoming jointly instructed witnesses in respect of children they had treated ran the risk of the court being deprived of expertise and excellence in those cases where children had been fortunate enough to have encountered clinically one of the diminishing number of doctors who were also ready, willing and able to participate in the forensic process.
A clear distinction had to be drawn between a medical decision as to what was clinically required for a child’s treatment and a forensic decision about what was necessary to ensure the proper determination of an issue. There would be circumstances where a second expert opinion was necessary to enable a process not only to be fair but to be seen to be fair.
Such an opinion, if obtained by parents accused of causing non-accidental injuries, might be conclusive of the issue, but in each case it had to be
